Jeff Cathey v. The
State.

Carrying a Pistol.--Fact
Case.--See the opinion for evidence held insufficient to support a
conviction for carrying a pistol.

Appeal from the County
Court of Bell. Tried below before the Hon. J. M. Rosborough, County Judge.

The opinion states the case. The penalty was a fine
of twenty-five dollars.

Monteith & Furman, for the
appellant.

W. L. Davidson, Assistant Attorney General,
for the State.

Hurt, Judge. Appellant was
convicted of carrying on or about his person a pistol, under
the following facts:

Frank Dean testified: "I was in a wagon with Jeff Cathey, about seven
miles from Belton, in Bell county, Texas. He stopped the wagon and commenced to
hunt about in the end of the wagon for a bottle of whisky. Cathey couldn't find
his whisky, and he reached down and picked up his pistol from the corner of the
wagon body, and accused Ellis and myself of having his whisky, which we denied.
He searched about his (p.493)pockets for his
whisky, held the pistol in his hand for awhile, and then put it down in the
corner of the wagon body by his saddle bags. He found his whisky, took a drink
and drove on." Appellant lived about nine miles from Belton, whither he had gone
to dispose of a load of cotton, and was on his return.

Do these facts constitute the offense charged? Article
318, Penal Code, provides: "If any person shall carry on or about his
person, or saddle, or in his saddle bags, any pistol," etc. It is not here made
an offense to carry a pistol in a wagon; and we do not think the lifting of the
pistol as stated, and the holding of it for a few seconds, constitute the
offense of carrying a pistol on or about his person. Not being supported by the
facts, the judgment is reversed and the cause remanded.